By james art President Trump is seeking to dismiss the criminal case against him on Jan. 6, citing a judge’s decision to dismiss the classified documents case on the grounds that special counsel Jack Smith was illegally appointed.
In a statement on Thursday, Trump’s lawyers asked the federal judge presiding over the Jan. 6 trial in Washington, Tanya Chutkan, to dismiss the charges on the grounds that Attorney General Garland’s November 2022 appointment of Mr. Smith was not legal.
The filing comes after Judge Eileen Cannon, who oversaw the criminal case against the former president brought by Mr. Smith involving his handling of classified documents at Mar-a-Lago, dismissed the case in July. Justice Cannon, who was appointed by Trump, found that the constitution did not give Mr. Garland the power to appoint “a federal official with the kind of prosecutorial power that he possesses.”
“President Donald J. Trump respectfully requests leave to file this proposed motion to dismiss the superseding indictment and for an injunction — which is timely and, in the alternative, supported by good cause — based on violations of the Appointments and Appropriations Clauses of the Constitution,” former the president’s lawyers wrote in their request to dismiss the case from January 6. “The proposed motion finds that this unfair case was dead on arrival — unconstitutional even before it began.”
The motion accuses Mr. Garland of violating the Appointments Clause by “naming Private Citizen Smith to target President Trump while President Trump was campaigning to take back the Oval Office from the Attorney General’s boss, without legal basis to do so “.
Skeptics of Mr. Smith’s appointment powers point to the part of the Appointments Clause that says presidents “shall nominate and by and with the council and consent of the Senate appoint ambassadors, other ministers of state and consuls, judges of the Supreme Court, and all other officers of the United States, the appointments of which are not otherwise provided herein and which shall be established by law.”
At the time he was appointed special prosecutor, Mr. Smith, a former federal prosecutor, was prosecuting war crimes in The Hague and was not a government official who had been approved by the Senate.
Critics of Mr. Smith’s appointment argue that a lawyer charged with prosecuting federal crimes must be a principal officer of the United States, the category of official to whom the first part of the Appointments Clause applies, because of the power they wield. However, President Biden did not appoint Mr. Smith, nor was the office of special counsel established by law.
There was a law governing independent counsel, but that expired in 1999. Since then, special counsels — a less powerful version of the independent counsel role that was blamed for failed prosecutions in the Clinton years — have been appointed by the Justice Department, a regulation that is not the same as a law passed by Congress.
In addition to the appointments clause, the filing said Mr. Garland violated the appropriations clause by “relying on an unimplemented appropriation to take more than $20 million from taxpayers — in addition to that Smith improperly relied on more than $16 million in additional funds from other unspecified ‘DOJ components’ – for use in improperly targeting President Trump and his allies during the height of the campaign season.”
Trump’s lawyers say the special counsel has been “operating with a blank check, relying on an unenforceable permanent and indefinite appropriation that was enacted in connection with the 1987 reauthorization of the Independent Counsel Act.”
“Smith was not appointed under that law, which expired in 1999. The appropriation provided for the possibility of appointment under some ‘other law,’ but no ‘other law’ authorized Smith’s appointment,” the attorneys said in the filing. “The appropriation also required that the prosecutor be “independent” in the very specific, strict sense that attorneys appointed under the defunct Independent Counsel Act were required to be independent.”
Mr. Trump’s lawyers urged Judge Chutkan to dismiss Mr. Smith’s superseding indictment “with prejudice” and to issue “an injunction against further costs by Mr. Smith … to prevent further irreparable harm.”
Earlier this year, Justice Clarence Thomas cast doubt on the appointment of the special counsel in his concurring opinion in the Supreme Court ruling on executive immunity. He wrote: “If there is no law establishing the position that the special prosecutor holds, then he cannot proceed with this prosecution.”
Justice Cannon agreed in July, arguing that Mr. Smith’s appointment was unconstitutional. She also dismissed the entire case because it was the result of “improper appointment” and “illegal exercise of executive power.” She also found that the appointment contravened the appropriations clause and that Mr Smith had “wrongfully withdrawn funds” because he was not lawfully appointed.
Mr. Smith appealed the decision, saying “precedent and history” and the “long tradition of appointing special counsels by attorneys general” supported his appointment. The 11th Circuit Court of Appeals will consider whether to uphold Judge Cannon’s ruling.
While Judge Cannon ruled in Trump’s favor in the documents case, the former president will likely have a harder time convincing Judge Chutkan to dismiss the Jan. 6 case.
Trump’s lawyers had previously signaled they would seek to have the case dismissed over questions about whether Mr Smith’s appointment was legal. However, Judge Chutkan, an Obama appointee, said she did not find Judge Cannon’s decision “particularly persuasive.”
She has consistently ruled in favor of Mr. Smith, including a ruling that Mr. Trump did not have immunity from prosecution for official acts he performed as president — a ruling that was overturned by the Supreme Court. She allowed Mr. Smith to release two tranches of damaging material about Trump’s behavior on and around Jan. 6, 2021, saying she was not worried about the proximity of Election Day.
Judge Chutkan also said from the bench that “presidents are not kings” and handed down harsh prison sentences to the January 6 protesters who were prosecuted by Mr Garland’s justice department. Earlier this week, Trump called her “evil” in an interview with Dan Bongino.
Mr Smith will have until October 31 to respond to Trump’s request to dismiss the case.
Trump has pleaded not guilty to all charges in Mr. Smith’s lawsuit against him. He also told radio host Hugh Hewitt that he would fire the special counsel “within two seconds” if he won the election.